A doctor often spends time being on call. Does this time spent being on call count towards his hours of work? This is an issue that hospitals and doctors have grappled with over the years. A recent European Court of Justice (ECJ) decision brought some clarity to the matter, but it seems clear that further discussion is looming.
In Germany, the time that a doctor spends being on call typically does not count towards his hours of work unless he was actually working during this period. The ECJ had a different view as can be seen from the recent Simap decision. The ECJ held that any time a person is required to be at work as part of his on-call obligations, he is held to be "working." A number of courts have followed this holding and have credited doctors for work performed, even though the doctors may not actually have been working while on call.
A German Labor Court of Appeals recently presented a slightly different, but related issue to the ECJ. In that case the issue was whether a doctor could still be credited for working if the doctor was permitted to rest or sleep during the time that he was on call. The ECJ opined in September 2003 that even in such instances, the doctor’s employer must credit the doctor for working. The ECJ reasoned that it is not within the doctor’s discretion to determine when and where he will be on call (or whether he will have time to rest) and therefore, he must be credited for "working."
As can be imagined, the ECJ’s decision did not meet with great support by hospitals and social health institutions. They feared that this decision would directly lead to a significant increase in health care costs.
The hospitals’ warning calls did not go unheeded, as earlier this year the European Commission called for the preparation of regulations that are to clearly define what constitutes working. The unwritten goal of the Commission will be to lessen the financial burden on hospitals. For example, one suggestion has been to introduce a third category relating to work, i.e., "on call". So far, German law recognizes only "working time" and "time off from work". Precisely what action the Commission will take remains to be seen; for the moment, however, the Simap decision is binding.
It is important to note that, though being on call constitutes working time, this does not mean that the doctor is necessarily entitled to the same level of compensation when being on call. An agreement between a doctor and a hospital whereby the doctor received 68 percent of his regular salary when on call was held to be enforceable. As a result, hospitals may agree with doctors that they will earn a lower salary while being on call.
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